BC Lawyer and Wills Variation Claims- First Families vs Second Families

Trevor Todd and Jackson Todd have over 60 years combined legal experience in handling contested wills where the first and second families are treated quite differently and unequally and often  fight for an equal share between the first family and the second family..


It is a not uncommon fact pattern in estate planning and in our office litigation for a will-maker to have had one previous family, including children, before eventually having a different partner and new children later in life. In litigation terms it is the first family vs. the second ( or more)  family.

It is also not uncommon that the will-maker will have had entirely different relationships with their respective sets of children. The will-maker often grows and matures, and perhaps becomes more gentle, present, and loving the second time around. They have often by then given up their alcoholic or abusive ways, and the second set of children simply have no appreciation of the treatment that their shared father had provided the first set of children, or the type of person and parent they had once been to others

As the second set of children arrive and mature, perhaps the will-maker mentions the first set of children or perhaps they do not. They may mention them in passing or grumble about them. The parent often disparages their ex-spouse and the children, deflecting anger for their failures as a partner and parent.

The second set of children often see a distant or strained relationship between the parent and the first set of children but see that strain and distance as the fault of their ‘disinterested’ half-siblings, with no understanding of the terribly disruptive role that their parent had once been to them in pushing them away, and only hearing the ‘aggrieved’ parent’s versions of events.

As the will-maker ages, the second set of children and the will maker resent the first set of children for “not being around” enough, even though they have been pushed away and have up grown into their own lives, hurt, and without much if any presence or contact to or from their biological parent.

The will maker often perpetuates mistruths about the first set of children, typically to seek to absolve themselves internally of their own blame and culpability. The second set of children (and/or spouse) are the ears that these complaints most frequently fall upon. These beliefs become reinforced over time and the will-maker then disinherits their first set of children, often spitefully, effectively seeing them as having been ‘discharged’ in every way moral or legal way and owing them nothing.

However, once the will-maker dies, the second set of children are then confronted with a claim such as the Action and the law of British Columbia that will scrutinize the fairness and justness thereof, closely.

The second set of children are then confronted with a recognition of the first set of children’s rights, the Deceased’s will-maker’s obligations to them, and often some rather uncomfortable truths about the Deceased will-maker and their past being revealed in the process.

In circumstances where the first children are mistreated and abandoned by their father, and subsequent attempts to reach out and repair the relationship are rejected, the issues are myriad throughout their entire lives, but many often reach the point of heartbroken acceptance after too many years of rejection. The second set, having never experienced this rejection, simply cannot understand where the first set is coming from or empathize with them.

The first set of children, often losing their relationship with their parent at a young age, cannot be faulted and blamed for their adult parent’s decision to withdraw from the relationship. The first set of children also cannot be blamed or faulted for not ‘trying hard enough’ in the eyes of the distant parent or second set of children, when the circumstances of their childhood and their treatment was abusive in nature, or when the parent withdrew from the relationship.

Jackson Todd

BC Estate Lawyer-Dysfunctional Families- Toxic Parents

Vancouver lawyer Trevor Todd has 50 years experience in understanding and getting justice for parties disinherited from dysfunctional and often toxic  families.

I am fond of saying that it is extremely easy to become a parent, but very difficult to be a good one.

Many children are simply not wanted, and many parents are incapable or unwilling to put in the effort to properly raise a child.

Many parents in fact, are highly toxic and I often see the results in my estate litigation practice.

While we give lip service to the notion that “all parents want the best for their children”, or “they did the best they could”, this is often simply not the case as many parents fail miserably  to give their children the mental and emotional care that they need.

Not only can it be difficult being the children of toxic parents, but the children may in fact become a toxic parent themselves. The children will invariably struggle with their sense of self-worth and mental health as a result of the toxicity of their parents.

Many toxic parents probably aren’t even aware that they are such an typically may blame others for their children’s short givings.

Some of the toxic parental traits are:

1. Judgmental and Unsupportive

These parents may praise other children, but never their own and typically find something or most everything at fault with their children.


2. They want To See their Children as Clones of Themselves

While most parents want the best for their children, it becomes problematic when the parents do not know how to create boundaries and recognize that their child is a different person from themselves. Toxic parents often expect their children to fulfill their unfulfilled dreams and make choices that make the parents happy, with little concern of what their children actually want.

I had a client tell me that his mother chose his career and his wife for him despite the fact that he did not want either. He explained to me that he simply had no choice.
These are often the parents that complain how much they have sacrificed for their children and that in return the children are obligated to their parents.

3. Everything is About Them

This is probably the most common toxic trait of all – the narcissistic parent who views the world as everything about themselves while at the same time not recognizing the needs and feelings of their children. The parents may even gush to others about how much they love and appreciate their children, even though they never seem to say or do anything of substance in support of their children.
These toxic parents basically will remember every little wrong thing that their child does and will never let them live it down.

4. The Kids Can’t Question Things or Express Their Honest Feelings
this is the parent, you typically tells the children not to ask stupid or inappropriate questions without really explaining why. The typically deny what their children express as honest feelings and give the children of the message that they are wrong for having their thoughts and feelings. The child will invariably feel that their thoughts and questions are not worthy.

5. Guilt

Guilt and manipulation of emotions is a very common experience with toxic parents sometimes it is subtle and sometimes it is blatant, but the result is the same – the child will incur stress and try very hard not to disappoint their parents, but to typically no avail. Guilt is a favoured tactic of toxic parents to get their own way.

6. Withholding Love and Affection as Punishment

A toxic parents typically has no inclination to soothe their “misbehaving ” child, and instead may resort to withholding love and affection as a means of discipline.
The punishment may involve a refusal to hug or hold the child, to the extreme of telling the child that they do not love them when they misbehave. The shame that results will typically only inspire worse behavior on the part of the child or the child will learn to hide the truth from their parents.

7. Mountains Out of Molehills

In the eyes of a toxic parent, every little act of disobedience, poor grades, misbehavior or uncleanliness amounts to a crisis leaving the children anxious and petrified to fail.

8. They Take No Blame and Make No Apologies

Parents make mistakes, but the toxic parents will never apologize to their children, even when it is greatly deserved. The toxic parent will view themselves as the parent, the people in charge, and therefore always right. When things go wrong. These parents are the first to blame others, and if their children are involved, then the children will be found at fault, even if they have not done anything wrong in the first place.

9. No Privacy

Toxic parents do not recognize that children, especially as they age, require their own space and privacy. The toxic parent may read their children’s diaries or rummage through their backpacks and be overly suspicious. The toxic parent insists that it is their house, and their rules, and if the child needs privacy, it is because they are up to no good.

10. Inapropriate Discipline

The toxic parent will resort to discipline, often in a more severe form, as a knee-jerk reaction to their own emotions of anger, annoyance, disappointment, or embarrassment. As a result of their child’s behavior. These parents fail to understand the big picture, or what is going on in their children’s heads.The discipline itself can be toxic, such as be reading ridiculing and generally making their children feel worthless.

Passive-Aggressive Behaviour

Passive-Aggressive Behavior

Passive-aggressive people are frequently seen in estate litigation and family law matters.

People such as parents or partners who display passive-aggressive behavior have a hard time expressing their feelings verbally. This results in the suppression of any negative emotions they may experience. Instead of expressing negative emotions verbally, they project those feelings in their behaviors toward a spouse or child.


What Is Passive Aggression?

Passive aggression is behavior that is indirectly aggressive rather than directly aggressive. Passive-aggressive people regularly exhibit resistance to requests or demands from family and other individuals often by procrastinating, expressing sullenness, or acting stubborn.

Manifestations of Passive-Aggression

Passive-aggressive behavior won’t manifest in a punch to the face, but covert anger can cause you to feel as if you’ve been kicked in the gut. People who exhibit this behavior show their anger by withholding something they know you want, through procrastination, stubbornness, and obstructionism. “Passive-aggressive people act passive, but are covertly aggressive,”

When they reach a point where they no longer want to go along with the status quo that has been set over the years, they will become defiant in their own non-confrontational way. That is when the disconnection and loss of emotional intimacy is most felt by those married to a passive-aggressive spouse or parent.

Emotional Alienation

Passive-aggressive people are pretty good at showing up and meeting needs during good times, but not so much during the bad times.

Their fear of conflict coupled with their fear of forming emotional connections keeps them from being a fully engaged partner. “Passive-aggressive people are generally codependent, and like codependents, suffer from shame and low self-esteem,”

They can form an intimate connection up to a certain point. They can be self-sacrificing within limits. They can make an emotional investment to a degree.

1. During an argument, a passive-aggressive person will claim that the other party is overreacting or too aggressive. In the heat of the moment, it is completely normal, healthy even, to be expressive and show emotions. These are traits that they themselves cannot understand, much less demonstrate. They may not see the exercise as a way to solve a problem—only to deepen one; some may even take it as a personal attack. Their refusal to engage in conflict leaves the other party feeling lonely and responsible for all the marital problems. “They don’t express their anger openly

2. The more expressive and emotional their partner/parent becomes, the calmer and more logical the passive-aggressive person appears to become. This is a mechanism to once again avoid conflict—the “logic” they employ is relative to the situation and does not reflect any mature emotional intelligence. .

3. The passive-aggressive person retreats completely and their partner/child is left to pick up the pieces. Nothing ever gets resolved, and such behavior sends a clear message that they are unwilling to meet halfway in the marriage. This feeling for the spouse or child is comparable to rejection, but the passive-aggressive partner/parent doesn’t see it that way. They still love their partner/parent , but will forget what that means when they begin to feel threatened, thus starting the chain reaction of conflict-avoidance, emotional distance, and long-term relationship woes.

The Pay-Off

There is a twisted logic at play behind someone’s need to remain calm and logical during times of conflict. They fear rejection, and by engaging and sharing their emotions during conflict, they feel this will trigger a rejection by someone they love. The thought of anyone being upset with them is unsettling, and when that person is their betrothed, they see it as emotional destruction.

The more they refuse to engage, the more effort their partner/child puts into their interactions together. In their mind, the more you try, the more you admire and love them, and so they will not see this situation as negative. Unfortunately, this leads to an emotional disconnect that cannot be bridged until their passive-aggressive behavior is addressed and amended.

Abusive Parents

In my practice of acting for disinherited people, I frequently encounter adult children who have been raised by abusive, even toxic parents. It comes with the territory.

I have frequently told clients that it takes absolutely no skill to become a parent, but takes a combination of lots of skill, love, dedication, and some luck to become a good parent and raise a functional family.

Probably most parents are not evil, they simply are people with the wrong set of tools to adequately raise a loving family.

Ironically, I have seen many cases where a mommy dearest for example, disinherits her children and leaves her estate to charities involving care for children.
Many of the parents in fact will state that they have no idea what they’ve done wrong, that they did everything for their children, and that they in fact are the victims. These are typically the parents that states “ I did everything for you, I brought you into this world and could take you out of it so fast her head would spin.”

I find this hard to believe in that many of these parents do in fact know what they did wrong, they were there, and they were the ones who acted abusively to their children.
The fact is that abusers are manipulative and manipulate their victims and the people around them.
Children do not want to break off the relationships with their parents, no matter what their age, but sometimes for their own medical well-being, they must.


                    Signs of Abusive Parental Behavior


1. Favouring One Child Over Another

Needless to say, this can lead to unfavoured children growing up with the distorted, negative view of themselves, and the favored child, the exact opposite.

2. Teasing and Humiliation

this can be as simple as teasing your child that they are overweight, ugly and other harsh statements that can seriously damage a child’s self-esteem. This is particularly the case if the child is put down in front of an audience.

3. Threatening Physical Violence

even if no physical harm is actually done, this kind of fear tactic is emotionally abusive and is very damaging in terms of inflicting emotional scars on the child.


4. Making Siblings Compete For Love and Approval

This abusive behavior actually encourages the pitting of one sibling against the other, and reinforces the lie that parental love should be earned. Instead of freely and unconditionally given

5. Being Absent

Ignoring a child emotionally and being absent from their lives can be extremely damaging to the child. Some children are in effect simply ignored.

6. Guilt Tripping

Some parents make their child feel guilty over the smallest things. It’s abuse when it occurs. For years, and possibly their entire life as the child will grow up fearing that he or she will disappoint their parent. This can lead to anxiety and depression and the constant fear of getting into trouble.

7. Perfectionism
some parents demand perfectionism in all aspects, whether it be school, behavior, extracurricular activities, and so forth. This can cause children to become excessively self-critical and undermine their confidence and self belief. This parent will typically never give praise even though well-deserved.

8. Invalidation

Invalidation is essentially ignoring the concerns of the child and telling them such things as back in my day we had it so much worse. It basically is a complete failure of the parent to be concerned and involved in their child’s development and growing pains.

9. Failure to Allow the Child to Communicate His/Her Needs

Similar to invalidation, this is the parental curbing of a child’s ability to speak for him or herself and express their needs and emotions.

10. Withholding or Making a Child Earn Basic Necessities

some parents deprive their children of basic needs, such as food, clothing, shelter and make the children feel guilty for receiving these things that a parent is in fact obligated to provide. These parents typically emphasize things like I feed you, I clothe the do, I don’t beat you, I put a roof over your head.

11. Lack of Privacy

Children need their own space in order to grow, and parental invasion of privacy, such as reading the child’s diary, searching through their cell phone, searching their room, and such can certainly cause friction between the parent and the child, let alone the child to become defensive, protective and secretive, even to the point of paranoia.

12. Using Religion for Shaming

The negative aspects of a strict shaming type religious upbringing are well known .

13. Conditional Love

When parent show love unconditionally. Children learn they are loved and wanted even when they make mistakes. However, when parents give love conditionally, children are taught the opposite and may struggle with perfectionism and trying to earn love.

14. Getting Back at the Other Parent

A well-known phenomena is when separated/divorced parents use children as pawns to inflict pain on the other parent. This may be as simple as using the children to get information about the other party, and denial of access, bad mouthing, and other abusive behaviors. In extreme examples. One parent may turn the children completely against the other, causing permanent estrangement.

15. Too Close For Comfort.

Some parents are simply too emotionally and even physically close to their children. Incest, of course, would be an extreme example, but this is rare. However, a relationship can be too close without it being sexual, and still have an abusive effect upon the child. `
16. Making the Child Who the Parent Wants Them to Be vs Who They Want to Be

While every parent will state that they want the best for their child, some deluded parents in their quest to have their children realize their potential. Try and mold their children and to who they think they should be, rather than who the child wants to be. I have had adults tell me that their parent picked their spouse, and demanded that they enter a certain profession, despite the unwillingness of the child to do so. Problems can arise when the child deviates from the parents. Ideal, and can result in rejection of the child. Many parents seem to have the view that a child lives to” make the parents proud” rather than the child simply be happy.

17. Verbal Abuse as Discipline

Although we all know the adage “sticks and stones will break my bones but names will never hurt me”and, the reality is this is simply not true and that words do hurt. This is particularly the case when the person inflicting harm for words is a parent or adult in charge of protecting the child.

Personality Disorders in Estate Litigation

One of the most common fact patterns in estate litigation involves a parent(s) with a personality disorder. We all know people like this – they are usually nasty, manipulative, verbally aggressive, defensive and revengeful, who often die alone with a messed up estate.

I typically refer to them as the type of person who is “laughing in their grave” at the inevitable estate litigation that they left behind.

A personality disorder is a type of mental disorder in which one has a rigid and unhealthy pattern of thinking, functioning and behaving. A person with a personality disorder has trouble perceiving and relating to situations and people.


People with personality disorders usually have a hard time getting along with others and dealing with everyday problems in the ways that are expected by a cultural group. They commonly believe that their way of thinking and behaving is completely normal. However, they tend to have a view of the world that is quite different than others. As a result, they may find it difficult to participate in social, educational, and family activities.

They also place blame on others for their challenges- often their own children.

There are many types of personality disorders but they have commonality.


All persons with personality disorder have four characteristics in common:

1. They are inflexible and maladaptive in response to any stressors;
2. they are emotionally disabled in both work and loving;
3. they seem to have an ability or even desire to evoke interpersonal conflict;
4. I have a capacity to “ get under the skin” of virtually everyone they meet.

People with personality disorder have very poor coping skills and the impact of aging and loss of independence greatly challenges those poor coping skills and typically results in an exacerbation of ”challenging behavior” to put it nicely.

Personality disordered people often see the world in black and white- people are either with them or against them, matters are either “good or bad”, and their opinion may shift from moment to moment, person-to-person.

Their opinions are typically ironclad but may shift, moment to moment. Whatever happens, it will be dramatic and over-the-top.

The Doctrine of “Clean Hands”

The Doctrine of “Clean Hands” | Disinherited Estate Litigation

In an action for fraud and misrepresentation Wang v Wang 2020 BCCA 15 the BC Appeal court found the trial judge was incorrect in disallowing a claim by reason that the plaintiff was not coming to court “with clean hands” while seeking an equitable remedy.

The appeal court held that the plaintiff was not barred from an equitable remedy as the clean hands doctrine was narrow and did not encompass her activities.

The clean hands doctrine decrees that “he who comes to equity must come with clean hands” Mayer v Mayer 2012 BCCA 77.

The doctrine is narrowly applied, however, and does not entitle the court to Candace all aspects of the parties behavior knowing to the court. Its use must be to the circle behavior related to the relief sought.

In DeJesus v Shariff 2010 BCCA 121 at para. 85 . The court adopted this passage from Snell’s Equity 30th ed. at 32:

The maximum must not be taken to widely. Equity does not demand that it’s suitors shall have blameless lives. What bars the claim is not a general depravity that one which has an immediate and necessary relation to the equity sued for, and is not balanced by any mitigating factors.

The court also adopted the statement from the Principles of Equitable Remedies, 2001 at 169 – 170:

“It must be shown in order to justify refusal of relief, that there is such an immediate and necessary relation between the relief sought and the delinquent behavior in question that it would be unjust to grant that particular relief. So, what was once emphasize that general fraudulent conduct signifies nothing; the general dishonesty of purpose signifies nothing; but attempts to overreach go for nothing; and an intention and designed to receive may go for nothing, unless all this dishonesty of purpose, all this fraud, all this intention and design, can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which the transaction took place, and must have given rise to this contract.”

Recognizing Personality Disorder

Recognizing Personality Disorder

My experience is that many children of parents with a personality disorder end in estate litigation, and I may be important to recognize this.

Generally speaking, people with personality disorders have poor coping skills and the impact of aging and loss of independence challenges those skills and typically results in an exacerbation of inappropriate and difficult to handle behavior.

Many people with personality disorder are highly anxious, at times dramatic, manipulative, emotionally reactive and verbally aggressive, inappropriate/cold with loved ones and caregivers.

Characteristic of Personality Disorder

Apparently all persons with personality disorder have four characteristics in common:

a) A capacity due to simply” irritate to death” others;
b) strong tendencies to revoke interpersonal conflict;
c) inflexible and maladaptive responses to stress;
d) disability in working with and loving others

Those who deal with people with personality disorders learn early on to avoid any type of criticism whatsoever, and to expect verbal abuse.

The person with personality disorder tends to see the world in terms of black and white, such as good or bad, friends or enemy ,distrusting or gullible.

People with personality disorders often deliberately leave their estate in a conflicted mess – I frequently refer to them as “laughing in their grave”.

Special Damages Must Be Particularized

Special Damages Must Be Particularized

Wilson v HMTQ 2019 BCSC 1049 involved a discussion of what special damages are and how they must be particularized.

The case involved a successful application by the defendants to strike claims for special damages from the plaintiff’s claim by reason of lack of particulars of what the claims for special damages, also known as particular damages were for.

Black’s Law Dictionary defines special damages as:

“Damages that are alleged to have been sustained in the circumstances of a particular wrong. To be awardable, special damages must be specifically claimed and proved,: also shortened to “specials”, also termed particular damages.

Jowitt’s Dictionary of English Law defines special damages as follows:

“Such a loss as the law will not presume to be the consequence of the defendant’s act, but which must be claimed in the pleadings; at the trial, it must be proved by the evidence, both that the loss was incurred, and that it was the direct result of the defendant’s conduct. A mere expectation of loss is not sufficient, though it may be taken into account in assessing general damages.”

As Lord Denning stated in Calvet v Tomkies (1963) 1 WLR 1399 stated that if the plaintiff alleges special damages, “ he must particular arise it”.

A simple example of particularized special damages would be the out-of-pocket expenses incurred by the victim in a car accident for such things as medical care.

Vancouver Estate Lawyer-Cutting Ties and Wills Variation

Cutting Ties with the Family and Estrangement - Disinherited

Vancouver lawyers Trevor Todd and Jackson Todd have over 60 years combined experience in understanding and getting justice through wills variation proceedings for parties disinherited from the result  of dysfunctional and often toxic  families to the extent that they had to cut ties..


I have frequently interviewed clients who told me innumerable variations of the theme that caused them to cut ties with their parents, only to be met with a memorandum in the parents last wills and testament, explaining that they are disinheriting that child as a result of his or her deliberate estrangement.

A wills variation claim on behalf of that child will invariably be met with the legal defence of estrangement, and thus no moral obligation on the part of the deceased parent to provide for the disinherited child.

I have frequently stated to clients that it is extremely easy to become a parent, but very difficult to be a wonderful and nurturing parent at all times.

Whenever I have spoken in public on the topic and asked the crowd if there were more functional families than dysfunctional families, it invariably invites a ripple of nervous laughter.

There are many dysfunctional families, often with toxic parents that cause children to leave home, often at an early age, and have little or no contact again with the parents for many years if at all.


Reasons for Estrangement

A short list of reasons that I have heard as to why the child has deliberately cut off ties with his or her parents is as follows:

1) Allegations of extremely self-centered narcissistic personalities that are typically belittling, critical and non supportive;
2) emotional abuse, including constant criticism and manipulation;
3) physical abuse, including sexual
4) competition
5) being told you are hated because you remind your mother of your father;
6) emotional blackmail such as guilt;
7) unreasonable demands;
8) histrionic behavior “I am going to kill myself if you don’t—“;
9) a total disregard for your feelings and needs;
10) controlling
11) overly critical resulting in low to extremely low self-esteem;
12) for no reason at all-the child was a scapegoat and never knew why
13) mental illness, drug and alcohol abuse;

Generally speaking, by the time a client comes to me, having been disinherited, the child has usually gone through some form of counselling, which often will lend support to a defence to the allegations of estrangement, namely that it was essential to your emotional and physical health to separate yourself from your parents.

Probably way more often that not they have experienced “difficult lives”.

J.R v J.D.M 2016 BCSC 2265 is an example of a decision where an estranged child was disinherited, but no explanation was left by the deceased other than the notary’s notes that he had not seen his daughter for over 10 years, but was awarded %60 of the estate.

The daughters evidence was that her late father had sexually intimate emotionally abused her and never financially contributed to her education and general welfare.

The daughter was believed, and the court found that as a fact it was the father’s mistreatment of his daughter and his voluntary abdication of his parental obligations that cause the fracture of their father-daughter relationship.

The court held that the onus for repairing the relationship and seeking any form of reconciliation with his daughter rested squarely with the deceased father and his moral duty to her was enhanced as a result of his blameworthy conduct.

The court can stated that when faced with a long period of estrangement, the court will inquire into the role played by the testator. If the estrangement is largely the fault of the testator, it will likely not negated testator’s moral duty to an adult child. Gray v Nantel 2002 BCCA 94.

The Doctrine of Clean Hands

The Doctrine of Clean Hands

A well-established principle of the law of equity is the doctrine of clean hands which states “he who comes into equity must come with clean hands.”

The clean hands doctrine serves to deny equitable relief for the misdeeds or misconduct as an immediate and necessary relation to the equity suit for- Hong Kong Bank of Canada v Wheeler holdings LTD (1993) 1 SCR 167

It must be shown, in order to justify a refusal of relief, that there is such an immediate and necessary relation between the relief sought and the delinquent behavior in question that it would be unjust to grant that particular relief.

The equitable doctrine of clean hands is related to the doctrine of “ex turpi causa “ which means that a person cannot found a claim or cause of action based on his own illegal or immoral acts- Norberg v Wynrib (1992) 2 SCR 226

In the Norberg case, a medical doctor was successfully sued for damages for prescribing prescription drugs to an addict in return for sexual favours.

In Werner v Werner (1987) BCJ 2546 (BCSC) the court refused the plaintiff’s relief stating that in order to prove his trust claim, the plaintiff had to testify as to the sham nature of the settlement agreement made in a family dispute with his wife to which he would be bound otherwise. If that agreement was valid, than his ex-wife was the owner of certain shares. The plaintiff’s claim was rejected on the basis of dirty hands.

The plaintiffs claim constituted an unlawful, immoral purpose, which had the effect of depriving the wife of an interest in property. In leading this evidence, the plaintiff ran afoul of the rule established by the Supreme Court of Canada in a series of cases including Goodfriend v Goodfriend (1972) SCR 640 that refine the rule to make it clear that the court will not accept evidence of an illegal purpose from a plaintiff who seeks to rebut the presumption of advancement.

In BMF Trading v Abraxis Holdings Ltd 2002 BCSC 590 the court stated:

“ most importantly and regardless of alternative remedies, I do not think that good conscious requires that this court should intercede in the circumstances. First, the parties deliberately structured the refers to insulate themselves from the burdens of ownership and they were cognizant of both the benefits and restrictions of such an arrangement. Now, the partners come the court alleging a relationship to four-star which directly conflicts with both the position the partners had taken in an earlier trial. The modern doctrine of constructive trust, which has been created to remedy an injustice to innocent are vulnerable parties, is not a device to be utilized by sophisticated businesspeople caught in the web of their own intrigue. Constructive trusts are not to be used as a reason Ward to parties who have gained advantage by denying legal ownership of an asset, only then to assert ownership when it suits them at a later date. This court must not facilitate such manipulation.”

A claim for constructive trust was dismissed in Mayer v Osbourne 2010 BCSC 1249 on the basis of inter alia that the plaintiff lacked clean hands because:

1) Failed to disclose evidence and knew that it was wrong;
2) gave evidence at his examination for discovery to mislead the opposing party and the examiner;
3) gave answers to some questions that he knew were not correct;
4) signed a settlement agreement knowing it was false when he signed it;
5) use the process of the court to affect a without prejudice dismissal of all of the claims advanced by the opposing party, including those that bear in the trust claims that the plaintiff advanced in the action.

The court dismissed the claims for resulting trust and constructive trust on the basis that the court could not overlook the plaintiffs lack of clean hands.- The court adopted the maximum that to accept the defence argument would be to condone chicannery if not actual fraud. No court will do so.